RUSS, AUGUST & KABAT SPH AMERICA, LLC - US China … · RUSS, AUGUST & KABAT Larry C. Russ, State Bar No. 82760 ... ZTE CORP., ZTE (USA), INC., Defendants. Case No. _____ COMPLAINT

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RUSS, AUGUST & KABAT Larry C. Russ, State Bar No. 82760 Marc A. Fenster, State Bar No. 181067 Brian D. Ledahl, State Bar No. 186579 Alexander C.D. Giza, State Bar No. 212327 12424 Wilshire Boulevard, 12th Floor Los Angeles, California 90025 Telephone: (310) 826-7474 Facsimile: (310) 826-6991 Attorneys for Plaintiff SPH AMERICA, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

SPH AMERICA, LLC, Plaintiff, vs. ZTE CORP., ZTE (USA), INC., Defendants.

Case No. _______________ COMPLAINT FOR PATENT INFRINGEMENT Jury Trial Demanded

'13CV2326 BGSGPC

Case 3:13-cv-02326-GPC-BGS Document 1 Filed 09/26/13 Page 1 of 16

SPH - ZTE Complaint.docx 1

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This is an action for patent infringement arising under the Patent Laws of the

United States of America, 35 U.S.C. § 1 et seq. in which Plaintiff SPH America,

LLC (“SPH” or “Plaintiff”) makes the following allegations against Defendants

ZTE Corporation and ZTE (USA), Inc. (collectively “ZTE” or “Defendants”).

I. PARTIES

1. Plaintiff SPH America, LLC is a Virginia limited liability company

having a principal place of business at 8133 Leesburg Pike, Suite 310, Vienna,

Virginia 22182.

2. On information and belief, Defendant ZTE Corporation is a

corporation organized and existing under the laws of China with its principal place

of business at ZTE Plaza, Hi-Tech Road South, Hi-Tech Industrial Park, Nanshan

District, Shenzen China 518057. On information and belief, Defendant ZTE

(USA) Inc. is a New Jersey corporation with its principal place of business at 33

Wood Avenue South, Iselin, New Jersey 08830.

II. JURISDICTION AND VENUE

3. This action arises under the patent laws of the United States, Title 35

of the United States Code. This Court has original subject matter jurisdiction

pursuant to 28 U.S.C. §§ 1331 and 1338(a).

4. On information and belief, Defendants are subject to this Court's

specific and general personal jurisdiction pursuant to due process and/or the

California Long Arm Statute, due to having availed themselves of the rights and

benefits of California by engaging in activities, including: (i) conducting

substantial business in this forum; and (ii) engaging in other persistent courses of

conduct, and/or deriving substantial revenue from goods and services provided to

individuals in California and in this Judicial District.

5. Venue is proper in this district under 28 U.S.C. §§ 1391(b), 1391(c)

and 1400(b). On information and belief, Defendants have engaged in activities



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including: transacting business in this district and purposefully directing its

business activities, including the sale of infringing goods, to this district.

COUNT I

INFRINGEMENT OF U.S. PATENT NO. RE 40,385

6. Plaintiff SPH realleges and incorporates by reference paragraphs 1-5

above, as if fully set forth herein.

7. Plaintiff SPH is the exclusive licensee of United States Patent No. RE

40,385 (“the ‘385 patent”) titled “Orthogonal Complex Spreading Method For

Multichannel And Apparatus Thereof.” The ‘385 patent was duly and legally

issued by the United States Patent and Trademark Office on June 17, 2008. SPH is

the exclusive licensee, possessing all substantial rights, to the ‘385 patent pursuant

to a license from the Electronics and Telecommunications Research Institute, a

South Korean non-profit research organization, the owner of the ‘385 patent.

8. On information and belief, ZTE makes and sells mobile handsets for

use on a wireless network.

9. On information and belief, ZTE has infringed and continues to

infringe the ‘385 patent by, among other things, making, using, offering for sale,

and/or selling unlicensed systems, and products and/or services related thereto,

covered by one or more claims of the ‘385 patent. Such unlicensed products

include, by way of example and without limitation, the Avid 4G, the Anthem 4G,

the Fury, the Spring Vital, the Boost Force, and the Warp Sequent mobile devices,

all of which are covered by one or more claims of the ‘385 patent, including but

not limited to claim 31. By making, using, offering for sale, and/or selling such

systems, and products and/or services related thereto, covered by one or more

claims of the ‘385 patent, ZTE has injured SPH and is liable to SPH for

infringement of the ‘385 patent pursuant to 35 U.S.C. § 271.

10. ZTE was placed on notice of its infringement of the ‘385 Patent no

later than approximately July 2009 as a result of a complaint filed by SPH alleging



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infringement of the ‘385 patent by ZTE. Though that action was subsequently

dismissed without prejudice as to ZTE, it placed ZTE on notice of its infringing

activities.

11. On information and belief, ZTE has also infringed the ‘385 patent by

inducing others, including users of its wireless handsets, to infringe one or more

claims of the ‘385 patent in violation of 35 U.S.C. § 271(b).

12. On information and belief, ZTE takes active steps to induce its

customers to infringe the ‘385 patent by taking affirmative steps to encourage and

facilitate direct infringement by others with knowledge of that infringement, such

as, upon information and belief, by importing, offering for sale, and/or selling

products and/or services that when used as intended infringe the ‘385 patent. For

example, and without limitation, on information and belief, ZTE advertises that

customers can utilize mobile devices to communicate using its network services for

3G communications enabled pursuant to CDMA2000 technology or WCDMA

technology. Since at least the time of prior complaint in July 2009, ZTE has had

actual knowledge of the ‘385 patent and that the use of products and services by its

customers constituted direct infringement of the ‘385 patent. Despite this

knowledge, ZTE has continued to offer its infringing products, to facilitate and

encourage infringing use of its products, and to encourage its customers to use its

products and services in a manner that infringes the ‘385 patent.


contributing to the infringement of others, including users of its handsets, to

infringe one or more claims of the ‘385 patent in violation of 35 U.S.C. § 271(c).

14. On information and belief, ZTE sells devices that are a component of

the patented invention of the ‘385 patent or an apparatus for use in practicing a

patented process of the ‘385 patent and they are especially made or especially

adapted for use in infringement of the ‘385 patent. In particular, the mobile

handsets sold and offered for sale by ZTE are apparatus for use in practicing one or



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more claimed processes of the ‘385 patent and are especially made or especially

adapted for use in practicing one or more claimed processes of the ‘385 patent,

including through use in communications using CDMA2000 technology or

WCDMA technology. ZTE sold these devices despite its knowledge that they

were especially made or especially adapted for use in infringement of the ‘385

patent. ZTE was put on notice of the infringing nature of these goods since at least

the time of SPH’s prior complaint in July 2009.

15. ZTE undertook its actions of, inter alia, making, using, offering for

sale, and/or selling unlicensed systems, and products and/or services related thereto

despite an objectively high likelihood that such activities infringed the ‘385 patent,

which has been duly issued by the United States Patent and Trademark Office, and

is presumed valid. Since at least the time of the 2009 complaint, ZTE has been

aware of an objectively high likelihood that its actions constituted, and continue to

constitute, infringement of the ‘385 patent and that the ‘385 patent is valid.

Despite that knowledge, on information and belief, ZTE has continued its

infringing activities. As such, ZTE willfully infringed the ‘385 patent.

16. As a result of ZTE’s infringement of the ‘385 patent, Plaintiff SPH

has suffered monetary damages and is entitled to a money judgment in an amount

adequate to compensate for ZTE’s infringement, but in no event less than a

reasonable royalty for the use made of the invention by ZTE, enhancement of

damages due to ZTE’s willful infringement, and interest and costs as fixed by the

Court.

COUNT II

INFRINGEMENT OF U.S. PATENT NO. RE 40,253



18. Plaintiff SPH is the exclusive licensee of United States Patent No. RE

40,253 (“the ‘253 patent”) titled “Apparatus For Making A Random Access To the



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Reverse Common Channel Of A Base Station In CDMA And Method Therefor.”

The ‘253 patent was duly and legally issued by the United States Patent and

Trademark Office on April 22, 2008. SPH is the exclusive licensee, possessing all

substantial rights, to the ‘253 patent pursuant to a license from the Electronics and

Telecommunications Research Institute, a South Korean non-profit research

organization, the owner of the ‘253 patent.







include, by way of example and without limitation, the Avid 4G and Anthem 4G

mobile devices, which are covered by one or more claims of the ‘253 patent,

including but not limited to claim 34. By making, using, offering for sale, and/or

selling such systems, and products and/or services related thereto, covered by one

or more claims of the ‘253 patent, ZTE has injured SPH and is liable to SPH for






activities.


inducing others, including users of its wireless handsets, to infringe one or more






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customers can utilize its mobile devices for 3G communications enabled pursuant

to WCDMA technology. Since at least the time of SPH’s prior complaint in July

2009, ZTE has had actual knowledge of the ‘253 patent and that the use of

products and services by its customers constituted direct infringement of the ‘253

patent. Despite this knowledge, ZTE has continued to offer its infringing products,

to facilitate and encourage infringing use of its products, and to encourage its

customers to use its products and services in a manner that infringes the ‘253

patent.


contributing to the infringement of others, including users of its wireless handsets,

to infringe one or more claims of the ‘253 patent in violation of 35 U.S.C. §

271(c).




adapted for use in infringement of the ‘253 patent. In particular, the mobile

handsets sold and offered for sale by ZTE are apparatus for use in practicing one or

more claimed processes of the ‘253 patent and are especially made or especially

adapted for use in practicing one or more claimed processes of the ‘253 patent,

including through use in communications using WCDMA technology. ZTE sold

these unlicensed devices despite its knowledge that they were especially made or

especially adapted for use in infringement of the ‘253 patent. ZTE was put on

notice of the infringing nature of these goods since at least the time of SPH’s prior

complaint in July 2009.



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is presumed valid. Since at least the time of SPH’s prior complaint in July 2009,

ZTE has been aware of an objectively high likelihood that its actions constituted,

and continue to constitute, infringement of the ‘253 patent and that the ‘253 patent

is valid. Despite that knowledge, on information and belief, ZTE has continued its







Court.

COUNT III

INFRINGEMENT OF U.S. PATENT NO. 7,443,906



29. Plaintiff SPH is the exclusive licensee of United States Patent No.

7,443,906 (“the ‘906 patent”) titled “Apparatus and Method For Modulating Data

Message by Employing Orthogonal Variable Spreading Factor (OVSF) Codes In

Mobile Communication System.” The ‘906 patent was duly and legally issued by

the United States Patent and Trademark Office on October 28, 2008. SPH is the

exclusive licensee, possessing all substantial rights, to the ‘906 patent pursuant to a

license from the Electronics and Telecommunications Research Institute, a South

Korean non-profit research organization, the owner of the ‘906 patent.



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activities.


inducing others, including users of its wireless handsets to infringe one or more








customers can utilize its mobile devices to communicate using 3G communications

enabled pursuant to WCDMA technology. Since at least the time of SPH’s prior



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complaint in July 2009, ZTE has had actual knowledge of the ‘906 patent and that

the use of products and services by its customers constituted direct infringement of

the ‘906 patent. Despite this knowledge, ZTE has continued to offer its infringing

products, to facilitate and encourage infringing use of its products, and to

encourage its customers to use its products and services in a manner that infringes

the ‘906 patent.


contributing to the infringement of others, including users of its wireless handsets,

to infringe one or more claims of the ‘906 patent in violation of 35 U.S.C. §

271(c).




adapted for use in infringement of the ‘906 patent. In particular, the unlicensed

mobile handsets sold and offered for sale by ZTE are apparatus for use in

practicing one or more claimed processes of the ‘906 patent and are especially

made or especially adapted for use in practicing one or more claimed processes of

the ‘906 patent, including through use in communications using WCDMA

technology. ZTE sold these unlicensed devices despite its knowledge that they

were especially made or especially adapted for use in infringement of the ‘906

patent. ZTE was put on notice of the infringing nature of these goods since at least

the time of SPH’s prior complaint in July 2009.









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Court.

COUNT IV





5,960,029 (“the ‘029 patent”) titled “Coherent Dual-Channel QPSK

Modulator/Demodulator For CDMA Systems, And Modulating/Demodulating

Methods Therefor.” The ‘029 patent was duly and legally issued by the United

States Patent and Trademark Office on September 28, 1999. SPH is the exclusive

licensee, possessing all substantial rights, to the ‘029 patent pursuant to a license

from the Electronics and Telecommunications Research Institute, a South Korean

non-profit research organization, the owner of the ‘029 patent.







include, by way of example and without limitation, the Avid 4G, the Anthem 4G,



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the Fury, the Spring Vital, the Boost Force, and the Warp Sequent mobile devices,

all of which are covered by one or more claims of the ‘029 patent, including but

not limited to claim 1. By making, using, offering for sale, and/or selling such

systems, and products and/or services related thereto, covered by one or more

claims of the ‘029 patent, ZTE has injured SPH and is liable to SPH for






activities.


inducing others, including users of its wireless handsets to infringe one or more








customers can utilize its mobile devices to communicate using 3G communications

enabled pursuant to CDMA 2000 technology or WCDMA technology. Since at

least time of SPH’s prior complaint in July 2009, ZTE has had actual knowledge of

the ‘029 patent and that the use of products and services by its customers

constituted direct infringement of the ‘029 patent. Despite this knowledge, ZTE

has continued to offer its infringing products, to facilitate and encourage infringing

use of its products, and to encourage its customers to use its products and services

in a manner that infringes the ‘029 patent.



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contributing to the infringement of others, including users of unlicensed wireless

handsets, to infringe one or more claims of the ‘029 patent in violation of 35

U.S.C. § 271(c).




adapted for use in infringement of the ‘029 patent. In particular, the unlicensed

mobile handsets sold and offered for sale by ZTE are apparatus for use in

practicing one or more claimed processes of the ‘029 patent and are especially

made or especially adapted for use in practicing one or more claimed processes of

the ‘029 patent, including through use in communications using CDMA2000

technology or WCDMA technology. ZTE sold these unlicensed devices despite its

knowledge that they were especially made or especially adapted for use in

infringement of the ‘029 patent. ZTE was put on notice of the infringing nature of

these goods since at least the time of SPH’s prior complaint in July 2009.















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Court.

COUNT V





8,121,173 (“the ‘173 patent”) titled “Apparatus And Method For Modulating Data

Message By Employing Orthogonal Variable Spreading Factor (OVSF) Codes In

Mobile Communicating System.” The ‘173 patent was duly and legally issued by

the United States Patent and Trademark Office on February 21, 2012. SPH is the

exclusive licensee, possessing all substantial rights, to the ‘173 patent pursuant to a

license from the Electronics and Telecommunications Research Institute, a South

Korean non-profit research organization, the owner of the ‘173 patent.















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reasonable royalty for the use made of the invention by ZTE, and interest and costs

as fixed by the Court.

III. PRAYER FOR RELIEF

WHEREFORE, Plaintiff SPH respectfully requests that this Court enter:

1. A judgment in favor of Plaintiff SPH that ZTE has infringed, either

literally and/or under the doctrine of equivalents, the ‘385 patent, the ‘253 patent,

the ‘906 patent, the ‘029 patent and the ‘173 patent;

2. A judgment in favor of Plaintiff SPH that ZTE has induced

infringement of the ‘385 patent, the ‘253 patent, the ‘906 patent and the ‘029

patent;

3. A judgment in favor of Plaintiff SPH that ZTE has contributed to the

infringement of the ‘385 patent, the ‘253 patent, the ‘906 patent and the ‘029

patent;

4. A judgment in favor of Plaintiff SPH that ZTE has willfully infringed

the ‘385 patent, the ‘253 patent, the ‘906 patent and the ‘029 patent;

5. A judgment and order requiring ZTE to pay Plaintiff SPH its

damages, costs, expenses, and pre-judgment and post-judgment interest as

provided under 35 U.S.C. § 284 for ZTE’s infringement of the ‘385 patent, the

‘253 patent, the ‘906 patent, the ‘029 patent and the ‘173 patent;

6. A judgment and order for treble damages pursuant to 35 U.S.C. § 284;

7. A judgment and order that this case is exceptional and requiring ZTE

to pay Plaintiff SPH reasonable experts’ fees and attorneys’ fees pursuant to 35

U.S.C. § 285; and

8. Any and all other relief as the Court may deem appropriate and just

under the circumstances.



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IV. DEMAND FOR JURY TRIAL

Plaintiff SPH requests a trial by jury of any issues so triable.

DATED: September 26, 2013 RUSS, AUGUST & KABAT Larry C. Russ Marc A. Fenster Brian D. Ledahl Alexander C.D. Giza By: /s Brian D. Ledahl

Brian D. Ledahl Attorneys for Plaintiff SPH America, LLC


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SPH America, LLC

Fairfax County, VA

Russ, August & Kabat12424 Wilshire Boulevard, 12th FloorLos Angeles, CA 90025 Telephone: 310-826-7474

ZTE CORP., ZTE (USA), INC.,

Shenzen, China

35 U.S.C. s. 271

Patent Infringement

Hon. Cathy Ann Bencivengo 09cv02535 CAB (KSC)

09/26/2013 /s Brian D. Ledahl

'13CV2326 BGSGPCCase 3:13-cv-02326-GPC-BGS Document 1-1 Filed 09/26/13 Page 1 of 1

Documents

RUSS, AUGUST & KABAT SPH AMERICA, LLC - US China … · RUSS, AUGUST & KABAT Larry C. Russ, State Bar No. 82760 ... ZTE CORP., ZTE (USA), INC., Defendants. Case No. _____ COMPLAINT